Absurdity of China’s Trade Union Law and ACFTU revealed in Jasic labour dispute
In the recent Shenzhen Jasic labour dispute which attracted much attention, the workers made a daring move to self-organize a trade union under the existing legal framework of China. However, workers’ aim to organize their lawful union was shattered by the Trade Union Law and the All-China Federation of Trade Union (ACFTU). When the workers were organizing their union, the ACFTU used the Trade Union Law as an instrument to abuse the power granted by the law. The ACFTU confused truth and falsehood, claiming the workers’ application according to legal procedures was illegal and irrational action. The official media repeatedly emphasized that the workers should organize their union according to the Trade Union Law, Constitution of the All-China Federation of Trade Unions, and Procedures in Setting-up Trade Unions. This article will analyze how the ACFTU abused public authorities to limitlessly “extend” and “re-interpret” these “three legal instruments”, and expose the lies of the ACFTU.
Rights smothered by laws: Freedom of association never protected
Truly adhering to the “essence” of the Trade Union Law, worker leaders Mi Jiu-ping and his peers asked for permissions on all matters from the ACFTU office in Longtian Street during the process of establishing a trade union, as the Trade Union Law stipulates that “higher level trade union organizations shall provide leadership to lower level trade union organizations.” (Article 11) When organizing the union, “the establishment of a primary trade union, local all-level federation of trade unions or a national or local specific industry trade union must be reported to the trade union organization at the next higher level for approval.” (Article 13) The law also stipulates that when workers try to establish a union, they have to report to the next higher level union for approval.
Besides manipulating the organization of trade unions, the Chinese Communist Party also uses other approaches to control grassroots workers’ organization. The ACFTU set up hurdles to firmly grasp leadership of grassroots trade unions, making it extremely difficult for workers to set up their trade unions from below. Controls on leadership of grassroots trade unions include:
“Before holding the representatives assembly or the general assembly, the trade union of next higher level should be consulted on the formation of the committee and auditing committee of the trade union, list of candidates for chairperson and vice-chairperson of the trade union, and chairperson and vice-chairperson of the auditing committee.” (Article 6, General regulations on establishment of grassroots trade union, Shenzhen Federation of Trade Union)
“The election results of the grassroots trade union committees, their standing committees, chairmen, vice-chairmen and auditing commissions shall be reported to the next higher trade union organizations for approval.” (Article 27, Constitution of the All-China Federation of Trade Unions)
The full control of higher level trade unions on the lower level trade unions allows the ACFTU to reject “inappropriate” candidates to be union leaders. The enterprise can also reject candidates and arrange pro-employer worker representatives to become committee members through the above regulations. As a consequence, the Chinese workers’ rights to organize trade unions are countered with extremely inequality in power. The power endorsed by laws and regulations to the ACFTU is also a pre-condition for collusion between the trade unions and the enterprises and trade-off of workers’ freedom of association.
Violence of ACFTU procedures: self-organized trade union was short-lived
There was hearsay that the local FTU was unhappy that the Jasic factory did not have a trade union since it was set up in Shenzhen in 2005. The local FTU might not be so concerned with workers’ rights, but for a 13-year factory to have no trade union definitely means pressure from the higher level trade union. However, as the Chairperson of Jasic is Pan Lei who is a representative at both the Shenzhen People’s Congress and Longgang District People’s Political Consultative Conference, the ACFTU, usually soft with the employers, would not stand firm against the enterprise. When Mi Jiu-ping first consulted the Pingshan District FTU, the FTU officer Xie Zhi-hai suggested them to organize their union. We should not ignore the important historical context and misinterpret such suggestion from the ACFTU as stance to defend workers’ rights, otherwise, one cannot explain the drastic turn of events during the later stage. Judging from ACFTU’s usual practice, it is highly probably that the ACFTU first supported the workers to initiate the establishment of a trade union but would later exclude them from the union leadership. Only this time, such deceits were met with a group of determined workers who refused to be silenced.
The ACFTU intended to take advantage of the workers’ grievances to initiate the formation of a trade unions, and then get rid of the worker leaders to take full control. However, such tactics were blatant procedural violence in the most disgraceful fashion. Firstly, when Mi Jiu-ping and other workers submitted application to set up a union to the local FTU, they were first advised to attain an approval stamp on the application form from their employers. However, such requirement is fabricated since according to the Shenzhen FTU’s regulations on procedures to set up grassroots trade unions, workers only have to submit basic information of the enterprise such as the nature of industry, date of establishment, number of employees, etc. The “three legal instruments” also do not require consent from enterprise for setting-up trade unions. The local FTU obviously knew that it was impossible to attain consent from the enterprise while they “extended” the regulations on the procedures to intimidate the workers.
After the enterprise refused to stamp on the application form for Mi Jiu-ping and other workers, the Longtian Street FTU asked them to recruit 100 workers to join the trade union. That was another “re-interpretation” of the law and regulaions. This requirement was not included in any laws or regulations related to union organization. The Shenzhen FTU’s procedure on setting up a trade union only stated that workers have to report to the next higher level trade union and get support from workers before setting up the trade union, without mentioning the ratio or number of supporting workers needed. However, when the workers successfully obtained signatures from 89 workers in support of setting up a Jasic trade union, the vice-chairperson of Pingshan District FTU, Huang Jian-xun announced that Mi Jiu-ping’s organization was illegal and, together with the senior management of the factory, asked Mi Jiu-ping to write a letter of apology to declare that he was not under the instruction of the district FTU to form a union. The local FTU asked the workers to follow requirements that did not exist in laws and regulations, and, without any legal basis, accused the workers for violating the laws. It was a result of the fact that the Pingshan District FTU abused the power granted by the Trade Union Law to interpret and elaborate on the laws and regulations.
The Trade Union Law became a tool to suppress self-organization of workers
Before Mi Jiu-ping and his peers started to recruit union members formally, they consulted the Shenzhen FTU in writing and asked what they could do if they were dismissed for organizing union and recruiting union members. The Shenzhen FTU called to reply that if they were retaliated or dismissed, the FTU would provide assistance. This is in line with Article 3 of the Trade Union Law: “All workers doing physical or mental work in enterprises, public institutions and government organs within Chinese territory… shall have the right to participate in and form trade union organizations pursuant to the law, regardless of their nationality, race, sex, occupation, religious beliefs or level of education.”
However, when Mi Jiu-ing was relocated and dismissed by the employer for organizing the trade union, the local FTU did not provide any assistance. On the contrary, it stood by the employer and accused the workers for organizing the union illegally. Inconsistency in ACFTU’s actions reflected the fact that it was not truly defending for the rights of workers. As such, not only had the ACFTU not fulfilled her responsibilities as stated in the Trade Union Law, it even condoned the employers to dismiss workers, and help to suppress the development of grassroots organization by condemning the workers’ actions as illegal. The ACFTU used the laws and regulations as instruments to achieve its political purpose by “expanding” and “re-interpreting” them. The Jasic case is clear evidence on how the ACFTU abused power to suppress union organization by grassroots workers.
Lower level follows higher level: A clear fact about unions in China
The essence of the Trade Union Law is clearly stipulated in Article 11: "Trade union organizations at the various levels shall be established in accordance with the principle of democratic centralism”. Article 9 of Chapter 2 of the Constitution of the All-China Federation of Trade Unions further elaborated on this:
The Chinese trade unions apply the principle of democratic centralism, the main contents of which are as follows:
1. Individual union members are subordinate to the trade union organization, the minority to the majority, and the lower trade union organizations to the higher trade union organizations.
In short, powers to organize and to lead trade unions in China are all in the hands of the ACFTU, on legal and practical basis, under the “three legal instruments”. Whenever the ACFTU felt its leadership in union organization threatened, it would unscrupulously use the “three legal instruments” to stop workers from self-organizing. The Jasic workers was not asking for true freedom of association, bust just to set up a union led by workers under the existing legal framework. Even if the workers successfully set up the organizing committee, the ACFTU could still change the leadership with other means. The experience of the Jasic workers showed that the ACFTU was just too keen to suppress grassroots organizations.
The Chinese government has always claimed that Chinese workers enjoy rights to association according to the provisions of the constitution and it did not violate the International Labour Convention’s terms on freedom of association, but its lies were exposed by the Jasic labour dispute. Even when workers followed the framework of the Trade Union Law to set up their trade unions, the ACFTU could use its power to manipulate procedures and interpret laws and regulations to stop the workers from setting-up a union. According to the Trade Union Law and Constitution of the All-China Federation of Trade Unions, the ACFTU has absolute control on union organization as the higher level FTU controls all decision-making in the procedures. The grassroots workers have no opportunity to organize union from below. The Trade Union Law is but a weapon of the Chinese government to suppress independent labour movement and take away workers’ rights.